Sunday, October 01, 2006

The N&O Does Nifong

The N&O published a lengthy profile of Mike Nifong’s career in today’s paper. The highlights of Benjamin Niolet’s front-page story:

1.) Nifong’s ever-changing versions of events continue to catch up with him.

The article’s most important paragraph was the following:

Although Nifong has never heard the woman tell her story, he believes her. He said in court last month that he met with her and detectives April 11 to discuss the judicial process. Nifong said she was too traumatized to speak about the incident. The day after that meeting, Nifong told a judge he was planning to seek indictments.

I strongly suspect that Nifong did hear the accuser tell her story (at least the version that she was offering as of April 11, which differs in dramatic ways from the story that she told on March 14, or March 16, or, perhaps, April 6). But his earlier versions of events left him trapped.

The D.A.’s September 27 comments built on earlier controversies. Nifong previously had assured Judge Stephens that the April 11 meeting didn’t discuss the case, only to see his words contradicted by, of all people, Sgt. Mark Gottlieb in the infamous “straight-from-memory” report. In light of Gottlieb’s claim, Nifong had to develop a tale which would reconcile both his earlier affirmation to Stephens and the Gottlieb report’s veracity—hence the “too traumatized” claim. Nifong, of course, never explained how the accuser could have been too trauamatized to have spoken about the event on April 11, but nonetheless have made reliable ID’s on April 4 or given a statement on April 6.

Niolet, however, has exposed the problem the D.A.’s latest version of events poses. Based on what transpired at the September hearing, two options exist:

  1. Nifong lied to the court about the substance of the April 11 meeting
  2. Nifong brought a case that contained massive holes without ever hearing the accuser tell her story.

In version one, the district attorney is unethical; in version two, he’s incompetent.

2.) When Nifong brings weak cases, evidence seems to be accidentally destroyed.

Niolet’s story recounts a 1994 rape case brought by Nifong with weak evidence (though evidence that’s much, much stronger than the Duke case). In that case, as Crystal Mess discovered, the prosecution “accidentally” erased over a portion of an audio recording the defense desired to use as evidence. In the Duke lacrosse case, of course, the Durham Police “accidentally” destroyed police recordings from the night of the incident that defense attorneys had requested be preserved.

3.) The N&O, unsurprisingly, couldn’t seem to find anyone who supported Nifong’s unique interpretation that he lacks discretionary authority on whether to bring this case.

Niolet, correctly, notes, “Even though an accusation is enough, it does not require a prosecutor to pursue a rape case. In general, part of a prosecutor’s job is to use judgment, said Robert L. Farb, professor of public law and government at UNC-Chapel Hill’s School of Government”; Farb stated, “Prosecutors evaluate cases all the time.”

Nifong, on the other hand, asserted on April 11 that “anytime you have a victim who can identify her assailant, then what you have is a case that must go to the jury, which means, in this situation, a jury will get to evaluate the evidence.” [emphasis added]

Nifong, in short, seems to believe (incorrectly) not only that a district attorney lacks discretion on filing a case in which an accuser wants to go forward, but that he must bring such cases even before anyone from his office hears the accuser’s version of events.

4.) Troubling aspects of Nifong’s personality have been apparent for some time.

Niolet’s story goes into greater detail than anything previously published about Nifong’s service in traffic court; or what the New Yorker deemed his “semi-retirement” on the public payroll. According to one traffic court attorney quoted in the article, “Working with Mike, you never knew from one day or the other who you’d be dealing with. He would curse you, scream at you, call you names over nothing.” Why the governor would appoint such an emotionally unstable person to be Durham County’s “minister of justice” is beyond me.

Several traffic-court foes pointed out that Nifong became particularly enraged at defense attorneys who didn’t seem prepared. With that background, it’s difficult to explain his behavior in this case, when very strong evidence exists that he and his staff made statements suggesting they hadn’t even read their own discovery file.


Niolet writes, “Although his unpredictable behavior might puzzle some observers of the lacrosse case, it is vintage Nifong.”

In fact, my sense is that Nifong’s behavior has puzzled few close observers of the case. His agenda, in fact, has been quite clear-cut: in March and April, he perpetrated a series of procedural frauds in order to obtain indictments that he needed for political purposes; and he now has little choice but to lurch forward, since dropping the case would increase the likelihood that a state bar ethics committee inquiry will strip him of his license to practice law.

What puzzles me, at least, is why so few voices in North Carolina’s political, legal, and (apart from the N&O news staff) media establishment have publicly challenged his behavior.

[Update, 8.12pm: Liestoppers provides its typical fine analysis on the article, and John in Carolina correctly points out that Niolet should have stated that Nifong's refusal to consider exculpatory evidence was not a sign of confidence but a violation of the state bar's ethics code.]


Anonymous said...

I have written the N&O to request validation of their statement.

Anonymous said...

What is most amazing to me about this article on Nifong "the lawyer," other than the fact that he didn't speak to the accuser before bringing the case, is that he has the audacity to complain of other lawyers who are unprepared. Nifong is the epitome of a lawyer of is unprepared. He does not read his own file, he does not verify facts and he files no paper in Court, he "wings it." And, because he is a DA, or in the past an ADA, that essentially answers to no one, he is allowed to get away with it.

Nifong went on national tv on March 27, in the most important case of his career, and arguably the most important case in Durham history, and boldly declared a rape had occurred on almost the sole basis of a medical report that he had not even read. By his own admission, he had not even talked to the accuser. This is a man who is so far beyond what should be expected in a fair-minded and able DA that it is almost unimaginable.

It is unbelievable to me that opposing lawyers and the North Carolina bar would allow an ADA in traffic court, of all places, to berate, demean and insult other lawyers. If you can get by the absurd notion of lawyers pressing causes in traffic court, the conduct of Nifong in negotiating "traffic pleas" is something that would not be tolerated in other jurisdictions. The opposing "traffic court" lawyers, and one can only imagine who these lawyers are, appear to be willing to entertain a shocking level of personal abuse from a governmental employee. Why they allowed this to go on is unfathomable.

Nifong has spent his entire career in a position that provides him with POWER over others. It is POWER, not by virtue of his accomplishments or skill, but POWER by virtue of the government job he holds. People like this who abuse that state POWER are the worst kind of petty tyrants and must not be allowed to hold and exercise the power of the state.

It is almost comical at this point to hear that Nifong was sent to traffic court to clean up the ethical problems in that venue. Ethical problems! The entire notion of a system that encourages lawyers to take traffic court cases in exchage for plea bargains is in and of itself unethical. The Durham bar has apparently set up a system whereby traffic ticket receivers are encouraged to hire incredibly meager lawyers, in exchage for several hundred dollars, to get their tickets reduced so that the ticket does not affect their car insurance rates. It is a rigged and corrupt system designed to line the pockets of the dregs of the legal profession, and Nifong was sent to run it. Pretty amazing stuff.

I will end with this. As a practical matter, Nifong answers to no one. He abuses his ethical duty to excercise wise prosecutorial discretion by taking weak cases to trial as demonstrated in the article. He does not care about the outcome, and he knows he has a good chance because of the power of the state, including prosecution friendly Durham judges, that he has behind him. He is unprepared himself, yet demands that those who oppose him must be prepared. If he loses at trial, and DA's having the ability to pick and choose which cases they bring to trial, rarely loses, he answers to no one. He took a free run at someone and lost. No biggie to him, but imagine the damage to the person he took a free run at. Financial ruin, emotional ruin, reputational ruin, all things that are of no moment to a crusading, yet blind, career prosecutor. Imagine the lack of respect and decency of a man who would abuse defendants and their lawyers he was prosecuting with snide remarks and poor attempts at humor during examination of witnesses. Yet this is what this petty, ill-prepared man does and gets away with.


Anonymous said...

Article after article comments on Nifong's mental instability. There have been numerous references in various blogs comparing Nifong to Captain Queeg in The Caine Mutiny. Where there's smoke, there's fire. There has to be something to all of this. How can it be that reasonable people would otherwise put up with all of his misconduct and tyrannical, lunatic behavior? If an employee or middle manager in the average office in this country behaved like this on the job, they would have been hauled in to their HR department ages ago and sent for counseling or dismissed outright.

Anonymous said...

"Under North Carolina law, her accusation is enough evidence to take the case to a jury."

This statement from the N&O, falls under the rubric of, "if you repeat something enough times to enough people maybe it will become true."

The genesis for this woefully incomplete statement, of course, is Mike Nifong, hardly an unimpeachable source when it comes to the law.

This isn't even enough to satisfy the probable cause requirement of the constitution. See Jovanovic v. City of New York. Jovanovic lays out the requirement of probable cause. "The fact that a victim provides the police with information of an alleged crime does not, without more, establish probable cause. Rather, officer has a duty to assess the reliability of the victim and, if circumstances call into doubt the victim's veracity, to investigate the allegations and corroborate them."

In this case there is not only a lack of corroboration of the accuser's accusations, there is a mountain of exculpatory evidence contradicting the accuser's accusations. The accuser even contradicts the accuser depending on which version of the story she is giving. Under these circumstances probable cause cannot exist.

Thus, I find it extremely hard to believe that a victim's untested, uncorroborated accusation that cannot even meet the federal requirement for probable cause can somehow be sufficient to get the case to a North Carolina jury. It can't and the statement is nonsense on its face.

A victim's accusation is not sufficient, in and of itself, to get a case to the jury as a matter of federal constitutional law.


kcjohnson9 said...

The Nifongian statement--"under North Carolina law, her accusation is enough evidence to take the case to a jury"--is accurate but highly deceptive.

Many rape cases are date rape cases--where there's little or no physical evidence, both sides concede that intercourse occurred, there was only one suspect from the start. In such cases, an accusation alone would be enough to get a case to the jury--and this kind of scenario, of course, is why the law is written as it is, not for the kind of case that Nifong is attempting to prosecute.

Anonymous said...

I read that Nifong flopped to the floor to demonstrate at one trial the angle of the bullet. I would give anything to see him flop to the floor to demonstrate the angle of an assault that he alleges happend. both parties on the phone, one missing and her beins strong enough to not only take an assault but a phone call. Amazing. In addition, all of this activity did not dislodge he "boyfriend's" DNA. Talk about the ability to multi-task. I will never visit or envcourage my children to attend that school in that horrible state.

Anonymous said...

KC, I respectfully disagree. You are getting bad info on this. A bare accusation cannot satisfy the probable cause requirement -- it therefore cannot be sufficient evidence to take a case to trial as a matter of law. Probable cause must exist at all times during the criminal proceeding.

Anonymous said...

To the 7:43 poster, exactly. And shouldn't state government workers who work for the taxpayers show at least the same level of respect in their dealings with others that we expect in the private sector? Of course they should, they should show MORE because they are public employees. How can Nifong escape state bar censure or discipline for the foul and abusive language he directs at other lawyers? How is Nifong permitted to say "poultry" in open court? This is the sign of a mean, vile, person.

Remember, he said this to the lawyer who was defending against a false rape allegation that Nifong was taking a run on. He has no fear of going to trial not because he is some brave, bold, crime fighter, but because he has nothing on the line. If he loses, so what? He was advocating for the victim, no matter if the victim is a false accuser. A lot of false bravado, and none of the Durham judges will do anything about it.

He is an utter disgrace.

Anonymous said...

But Nifong does have his enablers---Stephens, Titus---what is their excuse?

Anonymous said...

I recently retired with thirty years of state service. I worked with thousands of people in several different agencies and have never witnessed the outrageous behavior attributed to Nifong. It was my understanding that abusive behavior toward anyone was grounds for instant dismissal.

Anonymous said...

1:36, are you saying that you retired from state service in NC? In Durham? Did you deal with Nifong? If not, then with all due respect, it's apparent that notwithstanding your service, you really can't say what has been, and continues to be, acceptable behavior by state employees in Durham, NC...I can tell you this, every time I have entered a DMV, and I've dealt with many as the spouse of a career naval officer, I have *rarely* been treated as a customer, but always as an inconvenience...

(p.s. hi newport!)

Anonymous said...

New posting at Melanie's N&O blog on the Nifong piece: